Ramsey County District Court File No. 62-CR-11-5457
Lori Swanson, Attorney General, St. Paul, Minnesota; and John Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St. Paul, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Lydia Maria Villalva Lijo, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.
In this appeal from a conviction of prohibited person in possession of a firearm, appellant challenges the district court's denial of his pretrial motion to suppress evidence that police obtained while executing a search warrant, arguing that the record evidence does not support the district court's conclusion that the search warrant was executed before 8:00 p.m. and that the district court erroneously issued a warrant to conduct a nighttime search. We affirm.
St. Paul Police officer Steven Petron submitted a search-warrant application on July 7, 2011, to search the house at "284 Topping Ave., St. Paul" for controlled substances, drug paraphernalia, and related articles, and to search the person of "Rio." The warrant application included a description of "Rio" and asserted that, during the 72 preceding hours, "Rio" had sold crack cocaine to a confidential reliable informant at the house. The warrant application also stated that the house had come to the attention of police when they received a complaint on April 6, 2011, about noise, traffic coming "in and out of the house at all hours of the night, " numerous people living at the house, "the behavior of the children, " and the possibility that narcotics were being sold from the house. Police then watched the house on several occasions and observed people and vehicles making brief stops at the house. Based on this information, Petron suspected "narcotics activity" at the house. The search-warrant application sought authority for an unannounced, nighttime search "to prevent the loss, destruction or removal of the objects of the search or to protect the searchers or the public" because the controlled buy and most of the narcotics activity occurred at night. The district court found that there was probable cause to issue a warrant to search "Rio" and for an unannounced search of the house in either the day or nighttime.
Police executed the search warrant on July 14. As Petron and other officers approached the house at about 7:45 p.m., they apprehended appellant Mario Eugene Johnson, whose street name is "Rio, " after he left the house on foot. Police then went to the house, where they knocked and entered after a child answered the door. During the search of the house, they found a nine-millimeter pistol in the lining of a jacket, and the jacket pockets or lining contained mail addressed to appellant. Appellant later admitted that the pistol belonged to him.
Appellant was charged with being a prohibited person in possession of a firearm in violation of Minn. Stat. § 609.165, subd. 1b(a) (2010). Appellant pleaded not guilty and moved to suppress the evidence obtained during the search. Petron testified at the pretrial hearing on the motion, and when asked what time the search warrant was executed, Petron said, "According to the records, it was 8 o'clock p.m." When asked if the search warrant was executed a little before or a little after 8:00 p.m., Petron stated,
When we do search warrants, generally, we serve the warrants, make entry into the house, secure the residence and all the people inside, and then, we call for the case number. And the time that we call for the case number on this case it was -- it was 8 o'clock.
When Petron was reminded on cross-examination--incorrectly--that the police report stated that execution of the search warrant occurred at 8:01 p.m. and was asked what time the search warrant was actually executed, Petron said, "I believe – the actual time, I'm not sure. It was probably before 8, though."
The district court upheld the validity of the search warrant and its execution. As to what time the search warrant was executed, the court found that appellant "was taken in custody approximately fifteen minutes before ...